Let’s get one thing straight before we even start. I have never been stopped for a DUI (or DWI if that is what you call it) and do not ever intend on doing so. However, I know or have heard the stories of people that have. One thing that always puzzled me was that many of them have said that when they talked to their lawyer, one of the first things that the lawyer asked was "Did you take the Breathalyzer?” All of them said “Yes” so the lawyer said something like, “That was your second mistake of the night then. Don’t ever take the Breathalyzer.” At first, I thought that this was probably just a quirk of one state’s laws. I grew up in Louisiana and it has many strange laws.
However, I moved to Massachusetts a few years ago and I kept hearing people say the same thing. Just the other day, I was listening to a Boston area radio talk show ands they were discussing some 20-something guy who killed a lady while driving drunk. A caller was talking about what an idiot he was and the host interrupted with “Well, he wasn’t a total idiot since he knew enough to refuse the Breathalyzer.”
I can’t figure out why so many people would say this. The official line is that refusing the Breathalyzer is an automatic admission of guilt and will only guarantee that you will be convicted of a DUI and possibly face other penalties on top of that for refusing it.
Let us assume that you are stopped for a DUI and there is no doubt in your mind that you will fail it because you really are pretty loaded. Does it really make sense from a legal standpoint to refuse it because even if you take it, you will give proof positive that you were indeed driving drunk? Do lawyers really tell their clients this?
If you are driving drunk and get pulled over, and the cop asks to take a breathalyzer you have one of two options. Say no and take the field sobriety test and look foolish in front of all passing cars, or say yes and avoid that and take a little ride down town and take your licks. Have a buddy come get you and thats it. I doubt a lawyer would tell someone to say no to the breathalyzer. I think you are thinking of people who actually get out of it and then tell a story like the cop forgot to give me a breathalyzer and I beat it when the case got to court…etc…etc… or something like that.
In Minnesota at least, it is a crime to refuse to take a Breathalyzer test, even if you are sober. Refuse, and you will be arrested, no matter what. It is called “implied consent”.
IANAL, nor a drunk driver. You can ask to see a lawyer beforehand, but it cannot “unreasonably delay” the test.
If you drive drunk and get caught, you are screwed.
Refusing a breathalyzer test may be like refusing a lie detector test - not admissible in court. “Legally drunk” depends on your blood alcohol level. Once the state can show what that was (with the breathalyzer results), you’re toast. If there is no breathalyzer test, the officers can only attest to what they observed (i.e., driving erratically, slurred speech, alcohol on breath, etc.).
Lawyers cannot tell their clients to do anything illegal. However, as lawyers don’t have DUI clients until after the fact, that piece of advice, while slippery, is not proactive. Once you have one or more DUIs on your record, I’d think that refusing the breathalyzer test would not mean much in the scheme of things.
If You’re Arrested (several bulleted items which I’ll skip)
"# You’ll be offered a Breathalyzer test.
If you refuse the test, a police officer immediately takes your license, which is now automatically suspended for a minimum of 120 days or up to 2 years. You will also be required to pay a $50 fine to reinstate your license.
If you register a .08 or over (.02 for under age 21) on this test, a police officer will immediately take your license, and it will automatically be suspended for a minimum of 90 days or up to 15 months. You will also be required to pay a $50 fee to reinstate your license."
Now I’ll step to the side while we wait for real lawyers to appear.
Here in lovely New Jersey, if you don’t take the test, you are guilty of “Refusing to take the test”.
There is no defense. My Mrs. refused and it cost us:
legal fees;
1 year probation on her drivers license;
3 years of $1000 surcharge on her drivers license;
5 years of being unable to rent a car or be included as a licensed driver from some rental agencies (Hertz is one);
a fine and court costs.
A chemical breath test is nothing like a lie detector. A refusal to take a breath test (but not a portable breath test) is admissible against the defendant. A jury is even allowed to consider it as evidence of guilt.
“Legally drunk” doesn’t mean anything. Whether you are intoxicated depends on how your state defines intoxication. It is common (49 out of 50) to define intoxicated to include an alcohol concentration above a certain number, but it is likely that the definition of intoxicated includes a loss of normal mental or phyisical faculites.
Also, I notice you use DUI and DWI interchangably, and that may be part of the problem. Most (49) states have adopted staggered laws where they can charge you with DUI if you fail a field sobriety test, or have some lower threshold of alcohol in your system. The next step up is DWI or some other term for when you take a chemical test and light it up with a BAC over .08 or .1
So if you refuse the breathalyzer, you can only be charged with “under the influence” since thats all they can determine based on a field test. If you submit to, and fail the breathalyzer, most states will charge you with BOTH crimes.
IANAL
In the state of Florida, it says at the bottom of your license “Operation of a motor vehicle constitutes consent to any sobriety test required by law” directly underneath your signature. It was explained to me that you could indeed refuse a sobriety test, but that meant that immediately forfeited your license. Now we get to the IANAL part… I would think that refusing a breathalyzer or field sobriety test would simply lose you your driving priveleges, not get you out of a DUI, because couldn’t they just take you to a local hospital and have them do a blood test? A blood test wouldn’t be considered a sobriety test would it?
I’m in IL. I’m a lawyer, and my buddy is a lawyer who does a bit of DUI defense. In years past, he consistently said to refuse the breathalyzer and field tests. Don’t say anything, simply get out of your car and into the squad. You’ll spend the night in jail, but when you come up for trial, the case will be dismissed for lack of evidence.
Spoke with him last summer. Apparently they changed the law so that refusal to blow is an automatic (6 month?) license suspension. Maybe a fine too. I forget what he said the most frequent penalty for a 1st offense would be, but the odds were a conviction would result in considerably less punishment than refusal. So he said that if it is a 1st offense, he would recommend blowing. Not sure if the conviction is expungeable.
Note, this is based on nothing more than my recollection of a conversation of IL law several months ago when we both had put down a couple of beers.
Seems consistent with the MA law posted above. Penalty for refusing is considerably greater than blowing and failing.
Don’t think you can get off the hook that easily. You may have the option of taking a blood test instead. I’m pretty sure Arizona has a penalty for refusing a test though I’m not sure it’s it’s an additional offense or presumption of intoxication. Check your state statutes rather than taking legal advice from talk radio.
Yes same as here only its called “refusal to submit” and carries the exact same penalties as DWI.
So if your pulled over and refuse and was charged you’d have two charges that carry the same penalties, so in essence it’d be like you’d have two DWI’s (as far as penalties are concerned)
That being said IMHO I doubt if a lawyer would tell you not to take the test…
While you are required to take the Breathalyzer test, you are not required to do the field sobriety test, or blow into that toy the cop has in his cruiser. If the cop says you are suspected of driving under the influence, tell him to arrest you and test your breath on the only legal machine, the bonded one at the police station. The field sobriety test is optional, and will only provide the prosecution with evidence against you; ditto for the little breath tester the cop has. You are entitled to have a blood test in addition to the breath test, with a separate set of samples reserved for your lawyer to submit for independent testing. Say as little as possible; it is better to remain silent and appear drunk, than speak and remove all doubt.
The preceding are generally true in most states, check your local laws for specific applicability.
I was under the impression that you are given a choice of blood, breath, or urine test. The strategy then being, if you refuse the breathalyzer they have to take you in for the blood or urine test - giving you some more time to process more alcohol, possibly lowering your BAC (of course if you just had a drink it will be going up in the interim!).
Except that it isn’t likely your choice. Usually, it is the choice of law enforcement of what type of chemical test to offer you. Asking to take a different one will still be counted as a refusal to take the one offered.
Usually that is what they either say or strongly hint at, at least if they make part of their living defending intoxicated drivers. The absence of a chemical test gives good lawyers more room to work at trial.
Could you provide a cite for the proposition that a portable breath test result is admissible?
I was under the impression that the breathalyzer machines were prone to giving false positives to people who had recently used mouthwash containing alcohol. Is this true, or simply an urban legend? If it is true, then this sounds like an excellent ground for refusing a breathalyzer test. Is it not standard for the laws of most jursdictions to give suspects the option of a blood test in addition to, or instead of, the breathalyzer? Seems to me the only completely reliable way of getting a blood alcohol reading is to go to the source.
To account for the possibility of alcohol in the mouth, people taking such a test are not allowed to put anything in their mouths for at least 15 minutes before the test is performed. Also, the more modern equipment (Intoxilyzers at least) contain a slope detecting algorithm. If you have no alcohol in your mouth, the instrument expects to see a alcohol concentration rise from zero up to the limit of what is in your breath. This is an upward progression. If you have alcohol in your mouth, the instrument instead sees a higher concentration to start. This is not the smooth slope that the instrument is programed to expect. The instrument then invalidates that test, and the process of watching for 15 minutes is reset.
IANAL. Dinsdale is right. The answer is- “it depends”. The “depends” is whether or not you are DUI or not; then if so, you have to compare the penalties of a DUI to simply saying “no”. In some States & circumstances, saying “no” is a better option, in others- it is worse. And remember to count up all the penalties. Sure, both could come with a 1 year suspension of your license, but the insurance hit you’d get with a DUI is severe, and much less so for saying “no”. Of course- sometimes, in some states, you get hit with both- especially if you are drunk enough.
IANAL but it would seem that if this could be your second DUI, then saying “NO” and taking the suspension could often be better. With a decent lawyer, your first offense might not be so bad, penalty wise. Again, depends on the State & circumstances.
This question will have at least something like 50 “right” answers, depending on the State. But I (“IANAL” or not)- can give you the one undisputed “right” answer- “don’t drink & drive in the first place”.
IAAL, but as I just said in a response to a Pit thread, I don’t usually answer criminal law questions, as I don’t practice in that area, and know very little. So I can’t answer the question.
What I will say is that the rules in this area vary widely from state to state. Anyone relying on the general information provided here (which, even if accurate, probably doesn’t apply to your state) would be foolish.